Two Angry Men

Beyond the sensationalism and the sound bites, the Duke rape case reveals the perils of unchecked prosecutorial power.

By

March 4, 2008

At the end of February 2004, I wrote a letter that would never be received. The intended recipient was Cameron Todd Willingham, a Texas prisoner on death row. Months earlier, Willingham had written me a ten-page, hand-printed essay about his life in solitary confinement and his last experience in the open air. In it, he recalled a cluster of “blazing purple flowers,” the first he had seen in more than eight years.

The flowers were “gifts to the world,” he wrote, reminding him of his own gifts, which had been “taken away.” This was a reference to Willingham’s daughters, and herein lay some of my hesitation in replying. In 1991 he had been convicted of torching his house and burning to death his three girls: Amber, 2, and 1-year-old twins, Karmon and Kameron. Normally, I make only passing note of individual offenses–my interest is in prison conditions more than crime–but Willingham’s rap sheet struck me as so repugnant that I wasn’t sure how to respond.

When I finally got around to drafting my letter, I logged on to Texas’s offender locator service to verify the address and prisoner number, but the search came up blank. While I dithered, the State of Texas had taken Willingham outside one last time, transported him to Huntsville, strapped him to a gurney and killed him.

“I am an innocent man” were among Willingham’s last words, but almost no one believed him. I didn’t. My presumption of his guilt, in fact, mitigated my remorse for not having written back sooner. Almost a year later, however, an investigative feature in the Chicago Tribune revealed that Willingham had almost certainly been telling the truth.

At the trial, prosecutors had speculated that Willingham murdered his children so he would have more time to play darts and drink beer. Yet under scrutiny, this and other claims fell apart. A supposed confession turned out to be based solely on the word of a jailhouse snitch. An assessment of Willingham’s “future dangerousness” had been provided by Dr. James Grigson, nicknamed Dr. Death, who was expelled from the American Psychiatric Association in 1995 for declaring defendants psychopathic with reckless abandon. Most important, an independent fire expert contacted by defense attorneys, then a team of them convened by the Tribune, concluded there was no evidence of arson and that the state’s investigator had based his testimony on widely discredited junk science.

A preliminary report on the botched fire analysis had been provided to prosecutors, appellate judges and the governor in the weeks leading up to Willingham’s execution, but to no avail. Like his predecessor, Governor Rick Perry barely glanced at the file before giving his fatal nod. Confronted by reporters after the execution went forward, the district attorney (now a judge) stood by his work. “Does it give me pause?” he mused. “No it does not. I have no reservations.”

The same cannot be said, mercifully, of many other Americans. In recent years, cases like Willingham’s–which death penalty watchers say is one of the surest instances of what Sandra Day O’Connor once called a “constitutionally intolerable event,” the “execution of a legally and factually innocent person”–have opened a wide-ranging debate about wrongful convictions. Death row exonerations, in particular–now 127 and counting–have given rise to a nationwide network of innocence projects, which, in turn, have steadily turned up still more unjust convictions.

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DNA testing has provided the surest means to release, but even freedom for a few individuals doesn’t fix the systemic factors that put innocent people behind bars in the first place: among them anemic defense counsel, faulty witness identification procedures, unscrupulous expert witnesses, unrecorded confessions and special deals for witnesses willing to turn state’s evidence. Running through almost all such cases is also the wont of many prosecutors to overstep their statutory role as impartial enforcers of the law. According to a long line of Supreme Court decisions, prosecutors, as agents of the people, are supposed to adhere to a higher standard than defense attorneys, whose duty is merely to advocate for their clients. The government’s interest “in a criminal prosecution is not that it shall win a case but that justice shall be done,” instructed the Court in Berger v. US (1935). A prosecutor “may strike hard blows,” but “he is not at liberty to strike foul ones.” All too often, however, prosecutors seek convictions before justice, sometimes by any means necessary.

No one knows how often prosecutors strike foul blows. Their power to bring or dismiss charges, to offer plea bargains or leniency to cooperating witnesses, to marshal police investigators and lab techs, and to present or suppress state evidence is unmatched by defense counsel and is “essentially unreviewable,” observed James Vorenberg, former dean of Harvard Law School. Surprisingly little research exists on the subject, mainly for lack of access to sources, but most experts agree the problem is widespread. In 2003 the Center for Public Integrity catalogued more than 2,000 cases of prosecutorial misconduct grievous enough to overturn convictions, but this was only a sampling. Lawbreaking by prosecutors, says Bennett Gershman, a specialist on the topic at Pace Law School, is “a serious cancer in our system of justice.”

Most cases attract little attention: poor defendants shuffle off to jail, their protests seeming only to confirm the glib old joke that everyone in prison is innocent. Recently, however, a spate of sensational cases has spotlighted the ability of prosecutors to manufacture indictments and even guilt virtually at will. In Illinois, the corrupt prosecution of Rolando Cruz exposed faults throughout the entire criminal justice system, helping convince former Governor George Ryan to declare a statewide moratorium on capital punishment. In Tulia, Texas, a perjurious police officer and pugnacious DA colluded to lock up almost 15 percent of the town’s black population on drug charges before activists and pro bono attorneys tore apart their house of lies.

Of all these miscarriages of justice, however, none has attracted as much attention as the comparatively mild Duke lacrosse case, in which a small-time district attorney named Mike Nifong zealously pursued rape and kidnapping charges against three student athletes but finally managed to send only one defendant to jail–himself.

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Tapping into national anxieties about sex, class and race, the Duke case provoked outsized passions from the start. Within days of the allegations that white men had gang-raped a black woman near campus, television crews descended on gritty Durham and gothic Duke like fire ants on Cheez Whiz. And the blogosphere–first on the left; then on the right–erupted with indignation. Although spinoff civil suits are still working their way through the courts, three books have already come out on the case. The most ambitious, Until Proven Innocent–a team effort by a prominent journalist, Stuart Taylor, and a Brooklyn College professor turned indefatigable blogger, KC Johnson–has received adulatory reviews in the Wall Street Journal and the New York Times, as well as a contract with HBO for documentary development. Readable, informative, tendentious and ultimately unhinged, the book tries its best to wring wider significance from this Southern tragicomedy. That it fails suggests Americans on opposite ends of the political spectrum are no more ready to hold a civil “conversation about race”–much less rape and race–than they were when Bill Clinton encouraged them to do so in 1997.

The basic story line, by now, is as klieg-lighted as O.J.’s. On March 13, 2006, in a dingy clapboard house across from Trinity Park, about forty members of Duke’s lacrosse team decided to alleviate their spring-break ennui by hiring strippers for a keg party. Before midnight, two women arrived, and although the players had cleaned up their plastic cups and pushed back ratty couches to make a dance floor, the entertainment would not go well. The customers–strapping, clean-cut boys with bright futures on Wall Street–were disappointed that Allure Escort Services hadn’t sent white girls, as they had requested (one of them joked that the team’s only black player was “gonna love it”). The performers–one African-American woman and one biracial woman of Asian and African-American descent, whose hard-knocks backgrounds suggested somewhat dimmer career prospects–were surprised to find an entire sports team instead of a small bachelor’s party. One of them, moreover, was so intoxicated that she could hardly stand.

When the unsteady gyrating failed to arouse the spectators, ugly banter ensued. One fellow held up a broomstick as a sex toy, and the dancers, offended, called off the show. The two women retreated to a bathroom, then fumbled around the house collecting their belongings. The players wanted their money back, but they wanted a police visit less, so they eventually helped carry “Precious,” who had fallen down and was by then semiconscious, out to “Nikki’s” car. More angry words flew in the front yard. Nikki mocked a “little dick white boy” and was called “nigger” in return. As they drove away, one of the student athletes demonstrated his collegiate knowledge of history: “Hey, bitch, thank your grandpa for my nice cotton shirt.”

Such salvos across the color line struck a sensitive nerve around Duke. Although W.E.B. Du Bois had once singled out Durham as one of the most racially enlightened communities in the South, a climate he attributed to the “high ideals” of Trinity College (Duke’s predecessor), town and gown have since parted ways. While Duke clawed its way to the top of the college rankings, Durham settled into postindustrial malaise. Today, the South’s premier research university sits in a struggling, racially mixed town (46 percent white, 44 percent black) known more for its elevated murder rate than SAT scores. Embittered locals (almost 20,000 of whom work at Duke) refer to their city’s largest employer–an institution built on tobacco profits–as “the Plantation.”

Sex relations, too, are freighted with tension at Duke. Walled off from the community, Dukies have traditionally amused themselves by throwing raucous tailgate and frat parties with prurient and inequitable themes like “Secs and Execs” or “Presidents and Interns.” As on many Greek-dominated campuses, casual “hook-ups” are more common than prolonged courtship. And while male students tend to gain status through impersonal sexual encounters, women lose it, noted a 2003 report of the Duke Women’s Initiative. They come to feel that “being ‘cute’ trumps being smart.” According to a salacious write-up in Rolling Stone, Duke has more than its share of coeducational raunchiness–much of it involving binge drinking and blow jobs–yet professionals also take part. During the 2005-06 school year, frats, athletic teams and even sororities hired strippers for student events. Duke administrators compared the practice to taking a stick of dynamite into a house, though only the lacrosse players would manage to set it off.

As the dancers left the party that night, the disappointed revelers regretted that they were out $800 worth of beer money. They would soon have more to regret, when Precious (her real name is Crystal Mangum) ended up passed out in the back seat of a police cruiser. Asked by an intake nurse at an overnight mental facility if she had been raped, Mangum said yes and unleashed a fury.

Had police and prosecutors conducted a full and fair investigation, they almost certainly would have dropped the case. The accuser never told the same story twice, and even if she had, her history of unsubstantiated rape allegations, prostitution, drug use, felony indictments and mental hospitalization would have presented formidable challenges before a jury. Worse, Mangum’s dance partner failed to corroborate any of her claims. Nor did the physical evidence add up. Although the putative victim claimed to have been punched, kicked, choked and repeatedly penetrated, vaginally, orally and anally, hospital workers found only minor scrapes and swelling, injuries easily attributable to inebriated tumbles. Although she said she was raped by three to five men (depending on the version), subsequent tests would show that no one at the party left a trace of their DNA on or in her body.

As time went on, the case sprang still more leaks, but the district attorney nonetheless sailed his Pequod forward. Disentangling his motivations is no easy task. Taylor and Johnson speculate that Nifong took personal command of the case to garner publicity for his sagging political campaign against a rival in the DA’s office, but this doesn’t fully explain why he would continue the quest long after the polls closed and the press turned predatory. Whatever combination of hubris and willful ignorance inspired him, however, he never let evidence or ethics get in the way. When the accuser failed to identify any specific assailants, he conspired with local law enforcement to rig a photographic lineup so she couldn’t miss. When two of the three indicted players validated their alibis with time-stamped photos, cellphone records and testimony by multiple witnesses, Nifong refused to meet with their attorneys to discuss it. When two separate DNA tests on Mangum’s rape kit produced matches to four men but not a single lacrosse player, the prosecutor sat on the full results for months, a violation of open discovery law.

Even as his case listed, however, Nifong continued sounding off to reporters. “There’s no doubt a sexual assault took place,” he assured CBS, adding to the New York Times that what he “found so abhorrent…was the combination [of] gang-like rape activity accompanied by the racial slurs and general racial hostility.” With the media providing free publicity, Nifong denounced the accused as “a bunch of hooligans” and vowed to stand up for Durham. Referencing both North Carolina’s iniquitous racial history and town-gown ill will, he complained, “There’s been a feeling in the past that Duke students are treated differently by the court system. There was a feeling that Duke students’ daddies could buy them expensive lawyers and that they knew the right people.”

This last was among Nifong’s most astute observations. Unlike most of the defendants he confronted, the Duke students and their parents did indeed know the right people and would indeed assemble a top-notch, top-dollar legal team, which, in the coming months, would batter the DA into retreat, defeat and finally disgrace. By the time it was over, North Carolina’s Attorney General had declared the players “innocent of these charges,” and Nifong had morphed into a criminal defendant. In June 2007 he was disbarred for making prejudicial statements to the media and misrepresenting evidence. In August, after being convicted of criminal contempt of court, Durham’s unemployed former district attorney spent a night in jail.

With its high stakes, resonant themes and boomerang denouement, the case has natural story potential, but the authors of Until Proven Innocent fail to do it justice. Although they gained unfettered access to the defense team, the result isn’t intimacy or pathos of the sort found in legal thrillers like Jonathan Harr’s A Civil Action; it’s tedious hagiography. To Taylor and Johnson, the indicted players are not just wrongfully accused but persecuted paragons of modern masculinity. They exemplify not only “tenacious spirit,” “pure determination and hard work”–as described by a former Green Beret, no less–but also gentler virtues. One of them, who, embarrassingly for the defense, had been arrested for assault in 2005, is described as having a “reserved demeanor and unusually mild disposition [that] masked a personal warmth.” Another is introduced by a fellow student as “the most caring and honorable individual I have ever met.”

Such puffery is a necessary staple of the defense bar, but it makes for a dull, intellectually dishonest book. Determined to repel each prosecutorial advance, the authors explain away every foible of the defendants. When a campus committee finds that the lacrosse players, who make up less than 1 percent of the student population, account for 25 percent of the school’s disorderly conduct violations, the authors step over the data and emphasize “the report’s highly positive major findings,” that the players, who are overwhelmingly recruited from Northeastern prep schools, generally receive higher grades than other athletes. When a nonindicted player writes in a widely publicized e-mail that he plans after the next stripper party “on killing the bitches” and “cut[ting] their skin off while cumming in my duke issue spandex,” the authors dismiss it as an “off-beat” literary allusion to American Psycho. Rather than flesh out their protagonists as imperfect human beings caught in the depersonalizing clutches of the law, Taylor and Johnson stage them as wooden idols, here sending flowers to the coach’s wife, there volunteering for a cystic fibrosis foundation.

By contrast, anyone who dared, even for a moment, to express sympathy for the accuser or, worse, to raise larger questions about gender and racial inequality at Duke, comes in for excoriation. In this tale of unblemished martyrs set upon by irredeemable villains, Durham’s police officers are not just incompetent and mendacious but hell-bent on abusing “hated Dukies”; their crackdown on off-campus underage drinking is likened to a “reign of terror.” A sexual assault trainee who examined the alleged victim is not just credulous but a “strong feminist” who has imbibed the “untenable view that women never (or hardly ever) lie about rape.” Nifong himself is not just a “rogue prosecutor” but a “mediocre” layabout prone to “wild mood swings, an ugly temper, a petty-tyrant attitude, and a tendency to presume guilt.” He, too, is “known for hating Duke.”

Surprisingly, though, it is not Nifong, the mastermind of what the authors call “the most egregious abuse of prosecutorial power ever to unfold in public view” (never mind the constellation of more traditionally hued cases that stretch from Scottsboro to Jena), who comes in for the most heated condemnation. Nor is it the punditocracy, headlined by CNN’s Nancy Grace, who desperately tried to breathe hot air into the case even as it flatlined. No, the most dastardly evildoers in this overstuffed polemic are Duke faculty members, particularly “hypersensitive” academics associated with the “politically drenched” women’s studies and African-American studies programs. These “rush-to-judgment” “extremists” stand accused not only of shoddy scholarship, obfuscating jargon and voting disproportionately for Democrats–all familiar crimes to readers of David Horowitz–but of organizing an “anti-lacrosse jihad.” By trading in “crude, contempt-filled stereotypes of athletes” and “antiwhite racism,” Duke’s “pretentious prattlers,” we are told, managed to create a climate of physical danger for the lacrosse players and blow vital wind into Nifong’s sails.

The evidence here–in what is really the heart of the book, the rest of it being mostly cribbed from defense briefs–is surprisingly thin: selectively quoted op-eds, an intemperate open letter, a garbled newspaper ad and sundry leaked e-mails, most of them drafted hastily in the early days of the case, when the police were trumpeting “really, really strong physical evidence” of a detestable crime. But this doesn’t stop the authors from making brassy claims. In the age of affirmative action, they tell us, “hate-filled” academics have been able to turn centuries of racial and gender oppression upside down. In this topsy-turvy “Durham-in-Wonderland,” as Johnson titles his blog, the victims are “fortunate white people” and campus radicals behave like “white racists of old.” The innocent lacrosse players, alas, are not only victims of prosecutorial misconduct but of “mob-driven…race-based justice.”

To accept this interpretation requires an elastic imagination. African-American professors make up just 4 percent of Duke’s faculty (women, 31 percent), yet Taylor and Johnson would have us believe that the gradual augmentation of their ranks has muddied “traditional conceptions of academic excellence” and bound the whole institution in a “straight-jacket of political correctness.” Chief among the strap tighteners is none other than Duke’s president, Richard Brodhead–an aureate middle-of-the-road literature professor, who in this unlikely telling eggs on the “witch hunt.” (In truth, after recovering from his initial panic, during which he precipitously fired the lacrosse coach and canceled the season, Brodhead repeatedly intervened on behalf of the players and allowed them to rematriculate while still under felony indictment–a break with standard practice.) Most incredibly, the authors suggest that faculty “cheerleaders for Nifong,” aided and abetted by fellow travelers in the community such as the “all-powerful” Durham Committee on the Affairs of Black People, a local political group, beckoned the prosecutor forward and aided his metamorphosis into an antiwhite “racial demagogue.” If this was the case, Nifong’s conversion was incomplete. Of the 431 people his office sent to prison in 2006, 82 percent of them were black–hardly the output one would expect from the PC panderer depicted here.

However fantastical, this redirection of blame from law enforcement to the liberal elite has made Until Proven Innocent a livre célèbre on the right. George Will calls it a “scalding and disturbing book on America’s civic culture,” while Thomas Sowell claims that it reveals “how deep the moral dry rot goes in some of the fundamental institutions of this nation.” Following the authors’ lead, most reviewers have focused less on Nifong than on “censorious faculty members,” who, in the words of The Weekly Standard, “turned viciously against their own students in order to further political agendas that included race-baiting, Marxist class war, [and] man-hating feminism.”

This reduction of the case to right-wing clichés (as a supposed antidote to left-wing clichés) has the unfortunate effect of overshadowing the potentially valuable contributions of Until Proven Innocent. For amid its ravings about Ebonics, Jesse Jackson, “antiwhite hate groups” and the crucifixion of former Harvard president Larry Summers, the book manages to present an important critique of prosecutorial wrongdoing. The authors’ evidence (if not their rhetoric) serves to illuminate three obvious if oft-overlooked aspects of the case: First, Nifong’s spectacular downfall was more exceptional than his grandstanding and indifference to the truth. Second, “privileged white boys” are not commonly victimized by the criminal justice system, although “minority and poor defendants” are. And third, money makes all the difference; most wrongly targeted defendants, especially indigent ones, fare far worse than the well-heeled Blue Devils. Reade Seligmann, one of the exonerated players, makes the point succinctly: “If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they would do to people who do not have the resources to defend themselves.”

Taylor and Johnson belatedly grapple with these inconvenient truths. Prosecutor Nifong disrupted rather than destroyed the lives of his victim-defendants, and in one chapter, sandwiched between jeremiads against Catherine MacKinnon and “desperately politically correct” Duke administrators, the authors catalog several cases that have exacted a stiffer toll. Cameron Todd Willingham gets a mention, as do three other probable innocents put to death. The authors spotlight Alan Gell, a white man wrongfully sent to death row in North Carolina. Conspicuously, though, they omit Darryl Hunt, an African-American North Carolinian who spent eighteen and a half years in prison for raping and murdering a white woman, ten of them after DNA testing proved his innocence. (The Hunt saga apparently provides too awkward a counterpoint to the authors’ drumbeat about reverse racism.)

Whatever their color configuration, “the vast majority of prosecutorial misconduct cases” fly under the cable news radar, Taylor and Johnson note. This is because most defendants never go before a jury and because, especially at the pretrial phase, prosecutors wield “unchecked, almost absolute power.” Unlike judges, who answer to appellate courts, district attorneys generally bow only to voters, who, in recent elections, have favored hard-fisted crime-fighting over legal niceties. (State bars are supposedly responsible for disciplining prosecutors, but they seldom do so; criminal prosecutions, as in Nifong’s case, are virtually unknown.) Defense attorneys, of course, are supposed to provide a counterweight, but in cases involving low-income defendants, they are generally so outgunned that the process is adversarial in name only. As Angela J. Davis, a law professor at American University and author of Arbitrary Justice, remarks, “prosecutors hold almost all the cards, and they deal them as they see fit.”

What Taylor and Johnson might have pointed out is that this unbalanced state of affairs has been getting worse. As part of the perpetually renewed “war on crime,” judicial discretion has been cut back, parole curtailed, penal statutes extended and habeas corpus petitions strangled in red tape–all of which means that prosecutors now exercise more discretionary authority over charging, plea bargaining and sentencing than any other actors in the criminal justice system. Moreover, with the advent of the victims’ rights movement, tough-on-crime attack ads and community policing programs like Weed and Seed, prosecutors have emerged as paladins of effective local government, untarnished by attacks on the social welfare state. As Boalt Hall professor Jonathan Simon notes in his trenchant new book, Governing Through Crime, populist prosecutors have cast themselves as front-line defenders of civilization against barbarism, thus providing a punitive “model for political authority” that other executives from the President on down have taken to emulating.

In two cramped pages near the end, Taylor and Johnson offer a number of proposals to rein in prosecutors and minimize the likelihood of wrongful convictions. They suggest tougher penalties for prosecutorial wrongdoing, stronger open-discovery laws, more objective eyewitness identification procedures, mandatory tape-recording of interrogations and independent safeguards for crime labs. In a sharp break with law-and-order orthodoxy, they assert that states should pay the full legal costs of every acquitted defendant, thereby limiting politicians’ taste for headstrong prosecution by hitting them where it hurts.

In attempting a serious book on the Duke debacle, Taylor and Johnson might have expanded on such remedies (these they borrow from the website of the Innocence Project). They might have attempted to transcend blog-style vitriol and distill enduring lessons in hopes of preventing future innocents from getting “Nifonged.” Instead, these two angry men surrender to a seductive backlash story line and thus end up replicating what they decry in others: they “exploit the lacrosse case to advance their personal, pedagogical, and ideological agendas.” As such, their book will ride a wave of popularity on the right, where it will confirm the conservative conventional wisdom that America’s faculty lounges are crawling with subversives. Sadly, it will do very little to further the cause of reform in America’s out-of-control criminal justice system, in which too many criminal defendants are presumed guilty until proven innocent.